The Images of the ‘Consumer’ in EU Competition Law

Abstract

This paper examines the different images of the ‘consumer(s)’ drawn in EU Competition Law and seeks to identify exactly who those consumers are.

The competition provisions in the TFEU make several express references to consumers without defining the term. Further, a number of allusions to the consumer can be found in the jurisprudence, secondary legislation and the Commission’s guidance documents. These sources suggest, at first sight, that, as is the case in other areas of EU law, the image of the consumer painted by the law is not a uniform or monochrome one, but a colourful one, evoking a landscape of diversity. This chapter considers this diversity of images and argues that when the apparently differing approaches are set within the broader context in which they are used, and against the overarching goals of EU Competition law, it can be seen that the interpretations adopted in each scenario are not in fact inconsistent with one another. Rather, the question of how the consumer is characterised and defined in the competition law sphere is dependent upon the context and the part of the competition law process in which it is used. In particular, the meaning of the term ‘consumer’ adopted fluctuates depending upon whether it is used in the context of:

(i) describing the objectives of the competition laws and the consumers that those competition law rules are designed to protect;

(ii) identifying persons during the process of determining whether the competition law rules have been infringed and, consequently, their objectives thwarted: for example, when deploying analytical tools or identifying whether particular persons, or groups of persons, have been harmed or benefited by the conduct at issue; or

(iii) referring to some of the actors who participate in the enforcement of the substantive competition provisions. The chapter concludes by proposing a taxonomy of the images of the consumer(s) and by recognising that, despite the overarching objective of EU Competition Law, the final consumer is more likely to be a distant, rather than a direct, beneficiary of the rules.

Keywords: The Meaning of Consumer in EU Competition Law, Objectives of EU Competition Law, Antitrust Analysis, Public and Private Enforcement of EU Competition Law

JEL Classification: K20, K21, K42, L40